STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF STATE, )

DIVISION OF LICENSING, )

)

Petitioner, )

)

vs. ) Case No. 97-1878

)

UNALYSIS G. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Lauderdale,, Florida, on August 6, 1997, before Judge Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Douglas D. Sunshine, Esquire

Department of State Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

For Respondent: Randy A. Fleischer, Esquire

10000 Stirling Road, Suite 1 Cooper City, Florida 33024

STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations set forth in a two-count Administrative Complaint in which the Respondent is charged with violations of Sections 493.6118(1)(j), 493.6106(1)(b),

493.6118(1)(t), and 493.6101(7), Florida Statutes.

PRELIMINARY STATEMENT

At the final hearing on August 6, 1997, the Petitioner presented the testimony of three witnesses. The Respondent testified on his own behalf and presented the testimony of one additional witness. Neither party offered any exhibits into evidence.

At the conclusion of the final hearing, the parties were allowed ten days from the filing of the transcript within which to file proposed recommended orders. Counsel for the Respondent requested an opportunity to make a closing oral argument and was allowed to do so. Counsel for Petitioner waived closing oral argument.

The transcript of the final hearing was filed with the Division of Administrative Hearings on August 29, 1997.

Thereafter, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent did not submit a proposed recommended order.

FINDINGS OF FACT

1. The Respondent is a licensed security officer holding a Class "D" Security Officer License and a Class "G" Statewide Firearm License.1

2. On May 25, 1996, the Respondent was driving himself and his wife, Tracee Kinlock, to the home of the latter's brother. During the course of that drive an argument began on the subject

   of whether the Respondent had been seeing another woman. During the course of the argument, Ms. Kinlock became angry about the

   Respondent's refusal to discuss the subject and began hitting him on the arm and side.

3. The argument continued to escalate, and eventually Ms. Kinlock became so upset that she insisted that the Respondent stop the car and let her get out. The Respondent refused to do so. Eventually, Ms. Kinlock took matters in her own hands and grabbed the gear shift lever and pushed it into the neutral or park position.2 The Respondent told Ms. Kinlock to take her hands off of the gear shift lever and made several efforts to pull her hands off of the lever, but Ms. Kinlock refused to move her hands and refused to release the gear shift lever.

4. The Respondent became so angry or frustrated that he leaned over and bit Ms. Kinlock on the hand. He bit her hard enough to make her cry and release the gear shift. The bite did not draw blood, but it was sufficiently severe to leave visible marks and to cause the hand to swell.

5. After biting Ms. Kinlock, the Respondent was able to put the car in gear and resume driving. When they arrived at the home of Ms. Kinlock's brother, Ms. Kinlock threw her wedding rings at the Respondent, got out of the car, and began walking rapidly towards her brother's home in an effort to get away from the Respondent. The Respondent chased after her, grabbed her from behind, and then swung his foot in a sweeping motion in such a way as to intentionally trip Ms. Kinlock and cause her to fall down. Ms. Kinlock fell to the ground, and the Respondent fell on

   top of her. Ms. Kinlock's brother immediately pulled the

   Respondent away from Ms. Kinlock and then restrained the Respondent while Ms. Kinlock went into the house.

6. The police were called and shortly thereafter the Respondent was arrested and charged with the battery of Ms. Kinlock. The Respondent ultimately entered a plea of "no contest" to the charge of battery. Adjudication was withheld on the charge of battery.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

8. In license revocation and suspension actions, the Division of Licensing has the burden to prove by clear and convincing evidence the violations alleged in a license disciplinary action. Dept. of Banking and Finance v. Osbourne Stern, 670 So. 2d 932 (Fla. 1996), Pic n' Save Central Florida, Inc. v. Dept. of Business Regulation, Div. Of Alcoholic Beverages & Tobacco, 601 So. 2d 245 at 249 (Fla. 1st DCA 1992), Ferris v. Turlington, 510 So. 2d 292 at 294 (Fla. 1987).

   9. Sections 493.6118(1)(j) and 493.6118(1)(t), Florida Statutes, provide, in pertinent part:

   1. The following constitute grounds for which disciplinary action specified in subsection (2) may be taken by the department against any licensee, agency, or applicant regulated by this chapter.

* * *

(j) Commission of an act of violence or the use of force on any person except in the lawful protection of one's self or another from physical harm.

* * *

(t) Violating any provision of this chapter.

1. Section 493.6106(1)(b), Florida Statutes, provides, in pertinent part:

   1. Each individual licensed by the department must:

      
      

      * * *

      
      

      (b) Be of good moral character.

      
      

2. Section 493.6101(7), Florida Statutes, provides, in pertinent part:

   (7) "Good moral character" means a personal history of honesty, fairness, and respect for the rights and property of others and for the laws of this state and nation.

   
   

3. Section 784.03, Florida Statutes, defines "battery" as:

   
   

   1. A person commits battery if he:

      1. Actually and intentionally touches or strikes another person against the will of the other; or

      2. Intentionally causes bodily harm to an individual.

      
      

4. Section 784.046(1)(a), Florida Statutes, defines "violence" to mean "any assault, battery, sexual battery, or stalking by a person against any other person. (Emphasis added).

5. The American Heritage Dictionary, 2d Coll.Ed. at 1350, defines "violence," as: 1. Physical force exerted for the purpose of violating, damaging, or abusing: crimes of violence;

1. An act or instance of violent action or behavior; and defines "violent," as: 1. Marked by or resulting from great physical force or rough action: a violent attack; 2. Showing or having

   great emotional force: a violent outburst of anger. (Emphasis in original).

   1. Section 493.6118(2), Florida Statutes, provides, in pertinent part:

      When the department finds any violation of subsection (1), it may do one or more of the following:

      1. Deny an application for the issuance or renewal of a license.

      2. Issue a reprimand.

      3. Impose an administrative fine not to exceed $1,000 for every count or separate offense.

      4. Place the licensee on probation for a period of time and subject to such conditions as the department may specify.

      5. Suspend or revoke a license.

   2. The agency has met its burden of proof in this case. The testimony of the Respondent himself, as well as that of his wife, proves clearly and convincingly that the Respondent committed several acts of violence or uses of force upon another person, to wit: battery upon his wife, not in the lawful protection of himself or another from physical harm, when he bit his wife on the hand and when he swept her legs out from under her causing her to fall down.

   3. The actions of the Respondent prove clearly and convincingly that he lacks respect for the rights of others or for the laws of this state by his admitted biting and leg sweeping on his own wife. Such acts of violence cannot be condoned by those persons to whom the public trust is conferred and who are placed in position of authority over the public as a

      security guard. The Respondent has shown an inability to control his temper, combined with a propensity to intentionally inflict acts of violence upon defenseless persons. The Respondent has shown himself to be a probable danger to the public. If the Respondent cannot control his temper and respect the vows made to his own wife by virtue of marriage, he cannot be reasonably entrusted to respect the rights of members of the public in his capacity as an armed security guard.

   4. Pursuant to Rule 1C-3.113(2)(n), Florida Administrative Code, the Department's guideline penalty for a violation of Section 493.6118(1)(j), Florida Statutes, ranges from probation to suspension, revocation, or denial of license.

   5. No guideline penalty for a violation of Sections 493.6101(1)(b) and 493.6118(1)(t), Florida Statutes, exists.

RECOMMENDATION

Pursuant to Rule 1C-3.113(2)(n), Florida Administrative Code, it is RECOMMENDED that Respondent's Class "D" Security Officer License and Class "G" Statewide Firearm License be revoked pursuant to Section 493.6118(2)(e), Florida Statutes.

DONE AND ENTERED this 10th day of November, 1997, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1997.

ENDNOTES

1/ It is clear from the Respondent's Request for Formal Hearing that the Respondent did not dispute his licensure status.

2/ The Respondent and Ms. Kinlock testified that Ms. Kinlock pushed the gear shift lever into park or reverse. It is more likely that the gear shift was pushed into neutral, because the car slowed down, but continued to roll forward.

COPIES FURNISHED:

Honorable Sandra B. Mortham Secretary of State

The Capitol

Tallahassee, Florida 32399-0250

Don Bell, General Counsel Department of State

The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250

Douglas D. Sunshine, Esquire Department of State

Division of Licensing

The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250

Randy A. Fleischer, Esquire 10000 Stirling Road, Suite 1 Cooper City, Florida 33024

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-001878

Orders for Case No: 97-001878